EU court expert refuses to give Kit Kat a break

A top EU legal expert Thursday recommended that Nestlé's Kit Kat bar is not distinctive enough to warrant special trademark protection.

The opinion from Advocate General Melchior Wathelet from the European Court of Justice is the latest installment in a chocolate war that has been running since 2006, when Nestlé received a trademark for the distinctive four square fingers Kit Kat shape from the European Union Intellectual Property Office (EUIPO).

That decision was challenged the following year by Cadbury Schweppes, a major rival in the market that has since been taken over by Mondelez.

Mondelez makes Milka Leo bars, which also have the four square fingers regularly associated with Kit Kats.

Faced with a spiraling feud between two chocolate giants, the European Court of Justice annulled the EUIPO decision in 2016. It found that Nestlé had not demonstrated that its chocolate-bar image was recognizable as a Kit Kat in Belgium, Ireland, Greece and Portugal.

That decision angered both parties, however. Mondelez appealed to the ECJ on the grounds that the Court had found the image did have "distinctive character" in 10 other countries including Germany, France, Italy and the Netherlands. Nestlé and EUIPO appealed on the basis that companies do not have to demonstrate that their trademarks have distinctive character in each individual EU country.

Wathelet simply proposed "that the Court should dismiss the appeals brought by Nestlé and EUIPO," the ECJ said in a statement. The ECJ will make a final decision on the case at a later date.

Nestlé said in a statement that the Advocate General's opinion "is based on incorrect factual findings."